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COURT OF APPEALS DECISION DATED AND RELEASED November
30, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0298
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
FRED
J. PERRI,
Plaintiff-Appellant,
v.
DIOCESE
OF LA CROSSE,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for La Crosse County: PETER G. PAPPAS, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Fred Perri, a teacher of religion
at Aquinas High School in La Crosse, appeals from a summary judgment dismissing
his complaint against the Diocese of La Crosse, which operates the school. The trial court granted the Diocese's motion
for summary judgment because it concluded that it lacked jurisdiction. The court held that the First Amendment's
free exercise and establishment clauses,[1]
and article I, section 18 of the Wisconsin Constitution,[2]
precluded it from exercising jurisdiction.[3] Perri contends that the Diocese was not
entitled to summary judgment because there are disputed issues of material fact
and because the trial court erred in deciding that it did not have
jurisdiction. We conclude that there
are no material facts in dispute and that the Diocese was entitled to summary
judgment as a matter of law because the position Perri held was
"ministerial" or "ecclesiastical." We therefore affirm.
BACKGROUND
Perri's complaint
alleges that he had been employed as a teacher by the Diocese from 1972 until
1992, when he was terminated by the Diocese without first being advised that
his job performance was unsatisfactory.
During his employment, he had successive written one-year contracts with
the Diocese. The complaint asserts
three causes of action: (1) that the
one-year contracts created a legal and moral obligation on the part of the
Diocese to either continue to employ him or provide a sufficient severance
package, which obligation the Diocese breached; (2) that Perri's years of
service created an implied contract to continue to renew the one-year
contracts, which the Diocese breached; and (3) that the Diocese interfered with
his property right because he is now foreclosed from other employment
opportunities.
The
Diocese's answer denied all the allegations of the complaint, except that Perri
was employed as a teacher from 1972-1992, taught religious study, and had
one-year contracts with the Diocese.
Among other affirmative defenses, the Diocese asserted that the trial
court lacked jurisdiction under the free exercise and establishment clauses of
the federal and state constitutions.
The
Diocese filed a motion to dismiss and for summary judgment on several grounds,
including the lack of jurisdiction. The
affidavit of James Vail, the principal of Aquinas High School, accompanied the
motion. Vail averred that Aquinas is a
Roman Catholic high school operated by the Diocese of La Crosse, a religious
corporation. Perri at all material
times was employed as a full-time teacher of Roman Catholic religious
doctrine. As a full-time teacher of
religion, Perri's duties, in addition to teaching religion, included
sacramental preparation of students, liturgical participation in the religious
ceremonies of the Roman Catholic Church, student faith development, student
conscience formation and scriptural exegesis.
A
copy of Perri's written employment contract for the term July 1, 1991 through
June 30, 1992, was attached to Vail's affidavit and to the complaint. According to this contract, Perri's title
was "teacher" and his co-curricular title was "head girl's
basketball coach."
Perri
submitted his affidavit in opposition to the motion for summary judgment. He averred that he had held various
positions with the Diocese between 1972 and 1992, such as instructor of
religious studies, women's basketball coach and other miscellaneous
duties. He was never advised that his
work was unsatisfactory or that parents were dissatisfied, and he felt he was
doing an adequate and proper job.
Father Robert Altman, the prior principal, had commended him for the job
he was doing. It was only when Vail
replaced Father Altman that Perri was terminated. Before being terminated, he was given no warning that his
performance was unsatisfactory or that his actions violated any Catholic
doctrine. His role as a teacher
involved preparing students for adulthood and teaching them proper moral
standards and behavior, and he was unaware that anything he taught caused
discord among faculty, parents or students.
The Diocese's claim that it had ecclesiastical reasons for terminating
him was a pretext. The allegation in
the answer that he taught religious principles contrary to the doctrine of the
Roman Catholic Church is untrue. If he
is permitted to take the deposition of Vail and Donald Novotny, he will be able
to discover what is in his employment file and the basis for the Diocese's
action.
A
second affidavit submitted by Vail contained the following averments. As a teacher of Roman Catholic religious
doctrine at Aquinas, Perri was a member of the religion department. His assigned courses included "New
Testament" and "Sacraments," and he was required to use a
textbook entitled "Celebrating Sacraments." The table of contents of this book shows that it covers such
topics as "Prayer," "Jesus," "The Church,"
"The Sacraments in History," "Baptism" and
"Confirmation." A class
observation report of Perri's class, "Junior Morality," shows that in
this class Perri led a discussion on the beatitudes from the Bible and then
instructed students to make a list of moral issues, which the students then
read aloud. Perri's primary duty was to
convey to students the major tenets of Catholicism and the relationship of
those tenets to various moral, social and personal issues. His entire assigned curriculum was religious
in content.
Vail
averred in his second affidavit that on March 20, 1992, he informed Perri
in a written memorandum which was attached to the affidavit of concerns the
school, students and parents had regarding his religious teaching. The memorandum was preceded and followed by
verbal discussions with Perri about his failings in teaching the religion
courses assigned him. As a result of
these criticisms, Perri resigned his position and later attempted to rescind
the resignation. But the school
informed him it was not renewing his contract.
The reason for the nonrenewal was Perri's failure to properly teach the
religion courses and the resulting negative effect it had on the faith development
of these students.
Perri
submitted a second affidavit in which he disputed that there were any
discussions about his failings as a teacher of religion and disputed many of
the observations and criticisms in the March 20 memorandum. He considered resigning in order to receive
a service bonus, but decided not to. He
again stated that he properly taught the religion courses, does not disagree
with church doctrine, and was non-renewed for other reasons.
The
trial court granted the Diocese's motion for summary judgment because it
concluded that the March 20 memorandum clearly showed that the teaching of
religious doctrine was involved, and the court could not inquire into the
merits of the Diocese's decision without infringing on ecclesiastical authority. It relied on Black v. St. Bernadette
Congregation of Appleton, 121 Wis.2d 560, 360 N.W.2d 550 (Ct. App.
1984). In Black, we held
that Wisconsin courts lack jurisdiction to review the merits of a termination
based on ecclesiastical reasons. Id.
at 564, 360 N.W.2d at 552. We granted
summary judgment to the diocese and the bishop in Black,
concluding that the motivating reason for the discharge of the school principal‑‑to
avoid discord in the parish--was an ecclesiastical reason. Id. at 565, 360 N.W.2d at 553.
In
reviewing a grant of summary judgment, we employ the same methodology as the
trial court and review its decision de novo.
Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-15, 401
N.W.2d 816, 820 (1987). We must grant
summary judgment if there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Id.
Both
parties agree that the issue before this court is whether the trial court has
subject matter jurisdiction to decide Perri's contract and property rights
claims. Both agree that this depends on
whether the exercise of subject matter jurisdiction would violate the state and
federal free exercise and establishment clauses of the federal and state constitutions. Finally, both agree that the issue of
subject matter jurisdiction must be resolved before the trial court can decide
those claims. We agree. See Young v. Northern Illinois
Conference of United Methodist Church, 21 F.3d 184 (7th Cir.), cert.
denied, 115 S. Ct. 320 (1994) (affirming dismissal of Title VII claims
because First Amendment denied district court subject matter jurisdiction).
Perri
argues that, unlike in Black, there is a dispute in this case as
to whether the reason for not renewing Perri's contract was
ecclesiastical. Perri contends that
this case is more like Sacred Heart Sch. Bd. v. LIRC, 157 Wis.2d
638, 460 N.W.2d 430 (Ct. App. 1990). In
Sacred Heart, we ruled that the investigation of an age
discrimination complaint by a third-grade teacher at a religious school did not
violate the free exercise clause of either the federal or state constitutions
because Wisconsin's Fair Employment Law was a "neutral principle of
law." Id. at 642-43,
460 N.W.2d at 432. We distinguished Black
on the ground that in Black there was no dispute that the reason
for termination was ecclesiastical, whereas in Sacred Heart, the
teacher alleged that the proffered ecclesiastical reason was a pretext for age
discrimination. Id. at
640, 460 N.W.2d at 431.
Since
briefing was completed, we decided Jocz v. LIRC, ___ Wis.2d ____,
538 N.W.2d 588 (Ct. App. 1995), in which we held that the State of Wisconsin
may not enforce the Wisconsin Fair Employment Act against religious
associations when the employment position serves an inherently
"ministerial" or "ecclesiastical" function. Id. at ___, 538 N.W.2d at
597. This limitation was necessary, we
concluded, in order to protect the free exercise of religion,[4]
which prevailed over the compelling
governmental interest to eradicate discrimination. Id. at ___, 538 N.W.2d at 596.
In
Jocz, we adopted this test for determining if an employment
position is ministerial or ecclesiastical:
As a general rule, if the employee's primary duties
consist of teaching, spreading the faith, church governance, supervision of a
religious order, or supervision or participation in religious ritual and
worship, he or she should be considered "ministerial or
ecclesiastical." While this test
is not meant to provide the exclusive definition of "ministerial" or
"ecclesiastical" functions, it should provide a basic framework for
reviewing agencies or courts to follow when addressing the prima facie question
of whether a position is entitled to constitutional protection from state
interference.
Id. at ___, 538 N.W.2d at 598 (citation omitted).
We
concluded that Jocz's position with the Sacred Heart School of Theology was a
ministerial or ecclesiastical position.
The Sacred Heart School of Theology educated priest-candidates for the
Roman Catholic Church. The Field
Education program, which Jocz directed, was governed by church norms, religious
beliefs, church doctrines and church policies.
As director, Jocz helped prepare, evaluate and recommend for ordination
the priest-candidates according to church norms. Jocz, ___ Wis.2d at ___, 538 N.W.2d at 599.
The
ministerial or ecclesiastical test we adopted in Jocz focuses on
the nature of the position involved, not on the reason for the termination or
nonrenewal, which was our approach in Black and Sacred
Heart. "Emphasis on the
[nature of the position] rather than the reasons for [the] rejection
underscores our constitutional concern for the unfettered right of the church
to resolve certain questions.... In
these sensitive areas, the state may no more require a minimum basis in
doctrinal reasoning than it may supervise doctrinal content." Rayburn v. General Conference of
Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985), cert.
denied, 478 U.S. 1020 (1986). While
it is the court's duty to determine whether the position is ministerial or
ecclesiastical, once the court has done so, it may not inquire whether the
reason for the action has some grounding in theological belief. Id.
Perri
conceded at oral argument that, in light of Jocz, if Perri's
position was ministerial or ecclesiastical, the trial court did not have
subject matter jurisdiction. Both
parties stated, and we agree, that there is no reasoned basis to apply a
different test simply because this case involves a contract dispute, rather
than an employment discrimination claim.
If the compelling government policy of eradicating discrimination is not
sufficient to overcome First Amendment free-exercise rights in this context,
then private contractual and property rights would surely not suffice.
Perri
nevertheless contends that summary judgment was improper because there are
factual disputes on the question of whether his position was ministerial or
ecclesiastical. We disagree.
Perri
does not dispute that he was employed by the Diocese full-time to teach Roman
Catholic religious doctrine at a Roman Catholic high school during the
1991-1992 school year. Although he was
also the girl's basketball coach, he does not contend, and nothing in the
record indicates, that this was a primary part of his responsibilities. Perri also does not dispute the Diocese's
description of the courses he taught, the textbook he was assigned to use, or
the religious content of those courses.
Indeed, he avers that he always used the textbooks assigned to him in a
manner consistent with the Church's teachings and that he taught Roman Catholic
doctrine properly. The factual disputes
created by Perri's affidavits go to the circumstances of his resignation, communications
with him about problems with his performance, and whether there were problems
with his performance. None of these
disputes affects the nature of the position he filled as teacher of religion,
which is the relevant inquiry under Jocz.
Since
the relevant facts are undisputed, whether Perri's position is ministerial or
ecclesiastical presents a question of law.
Jocz, ___ Wis.2d at ___, 538 N.W.2d at 598. We conclude that it is. Perri's primary duties involve teaching
students the doctrines of the Roman Catholic Church, preparing them for
participation in the church sacraments and assisting them in the development of
their faith. We have no doubt that this
position is ministerial or ecclesiastical.
The trial court therefore does not have subject matter jurisdiction over
Perri's contract claims or property right claim.
By
the Court.—Judgment affirmed.
Not recommended for
publication in the official reports.
[1] The First Amendment to the United States
Constitution provides in part:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof."
[2] Article I, section 18 of the Wisconsin
Constitution provides:
The right of every
person to worship Almighty God according to the dictates of conscience shall
never be infringed; nor shall any person be compelled to attend, erect or
support any place of worship, or to maintain any ministry, without consent; nor
shall any control of, or interference with, the rights of conscience be
permitted, or any preference be given by law to any religious establishments or
modes of worship; nor shall any money be drawn from the treasury for the
benefit of religious societies, or religious or theological seminaries.
[3] The trial court concluded that the Freedom of
Religion Restoration Act, 42 U.S.C. § 2000(bb), also precluded it from
exercising jurisdiction. We do not
address this statute because of our conclusion that the federal and state
constitutional provisions denied the trial court subject matter jurisdiction.